RE: Transcript19 Mar 2022 13:25
Not entirely sure that I agree on the Emulsion argument being weak for Nanoco. The burden of proof rests with the petitioner *. Samsung are obviously putting a great deal of emphasis on the use of a word or label, but as the Nanaco lawyer pointed out, this is not the factual embodiment and the key claim also refers to "mixture" not emulsion. So Samsung's case seems to me more about semantics and less about the substance. To my mind that argument is not convincing.
* Arguments claiming prior art are used in defending and attacking patent validity. In one U.S. case on the issue, the court said:
One attacking the validity of a patent must present clear and convincing evidence establishing facts that lead to the legal conclusion of invalidity. 35 U.S.C. § 282. To establish invalidity under 35 U.S.C. § 103, certain factual predicates are required before the legal conclusion of obviousness or nonobviousness can be reached. The underlying factual determinations to be made are:
(1) the scope and content of the prior art;(2) the differences between the claimed invention and the prior art;(3) the level of ordinary skill in the art; and(4) objective evidence of non-obviousness, such as commercial success, long-felt but unsolved need, failure of others, copying, and unexpected results.
—?Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966).